On April 20, 2016, the Supreme Court of Ohio handed down a merit decision in State v. Arnold, Slip Opinion No. 2016-Ohio-1595. In a 4-3 opinion written by Chief Justice O’Connor, joined by Justices Pfeifer and Kennedy, in which Justice French concurred in judgment with a separate opinion, the court upheld the conviction in this domestic violence case. Justices Lanzinger, O’Donnell, and O’Neill each dissented with a separate opinion. If you are counting, that’s five separate opinions. There were many viewpoints expressed on the constitutional issues raised in the case, which was argued May 20, 2015.

Case Background

This case arises from a domestic violence incident in the Arnold household. Jeffrey Arnold, (“Arnold”) then 28, lived with his parents Connie and Lester Arnold. As the family and a grandchild were gathered in the kitchen, Arnold became upset with what his mother was cooking. When Lester left the room in an attempt to de-escalate the situation, Arnold grabbed his father by the hair, punched and choked him. Connie, hearing but not seeing what was happening, fled the house with the grandchild and asked a neighbor to call the police.

When the police arrived, Arnold refused to speak with them, and refused to let them speak with his father. After holding Lester captive for nearly half an hour, Arnold released his father through the garage. The police found Lester very scared, agitated, and very nervous. His wife was also very upset. Arnold, meanwhile, had fled. That night, Lester made a written statement to the police.

Subsequently, Arnold was charged with domestic violence and tried in the Fostoria Municipal Court.

Arnold’s Trial

Arnold’s case was tried to the court without a jury. The state called Lester as its first witness. Lester claimed an inability to recall the events giving rise to the charges against his son and repeatedly refused to answer the state’s questions, invoking the privilege against self-incrimination. Neither Lester nor Arnold’s lawyer explained how Lester’s answers might incriminate him. The state’s questioning of Lester became futile. After Lester refused to identify the statement he had made to the police the night of the incident, the prosecution asked him to read the statement. The trial judge ordered Lester to read the statement, over defense counsel’s objection. Lester read the statement, insisting he did not remember making it at the time. He neither adopted nor endorsed its contents. Lester testified that all he remembered from the night of the incident was telling a police officer that he did not want his son charged or arrested.

The state then went on to establish its case through the testimony of Connie, the police officers at the scene, and Lester’s written statement. During Connie’s testimony, defense counsel explored the theory that Lester was the aggressor against Arnold, which Connie unequivocally denied.

The trial judge found Arnold guilty. In doing so the judge stated that there was ample and sufficient evidence to find Arnold guilty beyond a reasonable doubt, even disregarding Lester’s testimony. Arnold was sentenced to 150 days in jail with no probation. In a split decision, with one judge concurring in judgment only and one judge dissenting, (perhaps a foreshadowing of the fractured Supreme Court decision) the Third District Court of Appeals affirmed his conviction.

Read the oral argument preview in the case here and the analysis of the argument here.

Counselman v. Hitchcock, 142 U.S. 547 (1892) (“The privilege against self-incrimination is accorded liberal construction in favor of the right it was intended to secure.”)

Hoffman v. United States, 341 U.S. 479 (1951) (The protections against self-incrimination “must be confined to instances where the witness has reliable cause to apprehend danger from a direct answer. At the very least, the proponent must establish that he or she is faced with some authentic, objectively real danger of incrimination. The court must decide whether to accept the witness’ refusal to testify, and whether to require the witness to answer if the witness is mistaken.)

State v. Dinsio, 176 Ohio St. 460 (1964) (Trial court may not allow the prosecution to continue line of questioning after witness properly asserts privilege against self-incrimination because the questions allow the jury to draw inferences regarding facts that the state is prohibited from eliciting from the witness by direct questioning. Limited to cases in which the privilege of immunity from self-incrimination is properly established. Several justices in Arnold got into a disagreement about the precedential value of Disnio on the issue of standing. The lead opinion states that properly understood, Disnio cannot reasonably be read to establish any point of law regarding standing. That is probably true, because even if Disnio does establish a point of law regarding standing, there aren’t four justices that agree on what that point is. And there have been more recent cases with more definitive holdings regarding standing from the U.S. Supreme Court, such as Lujan, and from federal appeals courts, such as Fredericks)

Malloy v. Hogan, 378 U.S. 1 (1964) (The privilege against self-incrimination also applies to witnesses who would otherwise incriminate themselves by giving responses to questions posed to them.)

United States v. Fredericks, 586 F.2d 470 (5th Cir. 1978) (“[A]t trial, a defendant can neither assert the Fifth Amendment right against self-incrimination on behalf of a witness, nor, if the witness himself asserts his privilege, take advantage of an error of the court in overruling it.”)

State v. White, 15 Ohio St.2d 146 (1968) (there is a presumption in a bench trial in a criminal case that the court considered only the relevant, material, and competent evidence in arriving at its judgment unless it affirmatively appears to the contrary.)

State v. Long, 53 Ohio St.2d 91 (1978) (An alleged error is plain error if, but for the error, the outcome of the trial clearly would have been otherwise.

United States v. Apfelbaum, 445 U.S. 115 (1980) (The cloak of the Fifth Amendment shields a person from answering a question only when the question presents substantial and real, and not merely trifling or imaginary, hazard of incrimination.)

In re Morganroth, 718 F.2d 161 (6th Cir. 1983) (Short of uttering statements or supplying evidence that would be incriminating, a witness must supply personal statements under oath or provide evidence with respect to each question propounded to him to indicate the nature of the criminal charge which provides the basis for his fear of prosecution and, if necessary to complement non-testimonial evidence, personal statements under oath to meet the standard for establishing reasonable cause to fear prosecution under this charge. Statements under oath, in person or by affidavit, are necessary because the present penalty of perjury may be the sole assurance against a spurious assertion of privilege. Argument may be supplied by counsel but not the facts necessary for the court’s determination.)

United States v. Owens, 484 U.S. 554 (1988) (The Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.)

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (The minimum standard for establishing standing requires three elements. First, an invasion of a legally protected interest which is a) concrete and particularized, and b) actual or imminent. Second, there must be a causal connection between the injury and the conduct complained of. Third, it must be “likely,” as opposed to merely “speculative” that the injury will be redressed by a favorable decision.)

State v. Barnes, 2002-Ohio-68 (An alleged error is plain error only if the error is obvious.)

State v. Reed, 2003-Ohio-6536 (extrinsic impeachment may be used when a witness says that he cannot remember making a prior statement)

Crawford v. Washington, 541 U.S. 36 (2004) (When the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints on the use of his prior testimonial statements. The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it. The Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.)

State v. Perez, 2009-Ohio-6179 (If a claim is not raised to the trial court, the claim is thus waived unless plain error is shown.)

State v. Goff, 2010-Ohio-6317 (The privilege against self-incrimination was intended to secure the right of an individual to force the state to produce the evidence against him or her own by its own labor, not by forcing the individual to produce it from his or her own lips.)

State v. Harris, 2015-Ohio-166 (In order to determine whether an alleged error affected the substantial rights of the defendant and requires a new trial, the reviewing court must ascertain (1) whether the defendant was prejudiced by the error, i.e., whether the error had an impact on the verdict, (2) whether the error was not harmless beyond a reasonable doubt, and (3) whether, after the prejudicial evidence is excised, the remaining evidence establishes the defendant’s guilt beyond a reasonable doubt.)

Merit Decision

This is a long and ponderous decision in which the court considers three constitutional claims: the Fifth Amendment right against self-incrimination, the right to a fair trial guaranteed by the Sixth and Fourteenth Amendments, and the Sixth Amendment right of confrontation of witnesses.

Fundamentals of the Privilege Against Self-Incrimination

The lead opinion starts with some fundamentals. The privilege against self-incrimination secures the right of a person to force the state to produce the evidence against him or her, not to force the individual to produce it for the state. This is a personal right. It attaches to the person, not to the information. In addition to applying to the accused, it also applies to witnesses who would incriminate themselves in answering questions.

Arnold’s Standing To Raise Lester’s Claim of Privilege Against Self-Incrimination

The question here is whether a defendant has standing to assert a claim of the privilege against self-incrimination made by a witness. This was a point on which the justices seriously disagreed. Chief Justice O’Connor’s lead opinion held that Arnold lacked standing to assert Lester’s privilege against self-incrimination, or claim error based on any alleged violation of Lester’s Fifth Amendment right against self-incrimination. But that holding on standing does not have four votes.

The lead opinion then proceeded to address the merits of the case, starting with the right against self-incrimination.

The Merits of the Self-Incrimination Claim

A witness who claims self-incrimination must show an authentic and reasonable danger of self-incrimination. Just saying it is so doesn’t make it so. It is for the court to decide if witness silence is justified, and must do so with great care so as not to require too much proof that thus force the disclosure of what is claimed to be privileged.

The prosecutor pointed out that when defense counsel objected to Lester’s reading of his statement to the police, defense counsel was unable to offer any basis whatsoever for the assertion of the privilege. The lead opinion concedes that the inquiry in this case by the trial court was “less than ideal,” but concludes there was not a shred of evidence or information suggesting Lester was really in any danger of self-incrimination.

But the lead opinion went one step further on this point, finding that even if the trial court did err by not inquiring more fully into Lester’s purported fear of self-incrimination, such error was harmless beyond a reasonable doubt under the court’s three-part harmless error test, set forth in in State v. Harris. There was no showing here to refute the presumption that the trial court considered only relevant, material, and competent evidence in reaching a verdict, and in pronouncing judgment, the trial court expressly stated that the state had met its burden even without Lester’s testimony.

Fair Trial and Manifest Weight Claims

The lead opinion considers these claims together because it concludes that Arnold’s fair trial claim is really a manifest weight of the evidence claim. Arnold argued that the trial court prejudicially presumed his guilt by its conduct and remarks. In short, the court found no evidence of any such prejudice. You can read all the details in ¶¶56-63.

Sixth Amendment Right of Confrontation

Arnold argued that his Sixth Amendment right of confrontation was violated when the trial court allowed Lester to read his prior statement at trial. Since Arnold did not raise this claim to the trial court, it would be deemed waived unless plain error is shown, meaning but for the error the outcome of the trial clearly would have been otherwise. (The Chief chides Justice French for ignoring the plain error standard on this issue in her separate concurrence.)

The lead opinion finds that since Lester was present, in open court, the opportunity for cross examination existed in the case, which is all the Confrontation Clause requires. And any error here would be harmless beyond a reasonable doubt, given the fact that the trial judge in this bench trial disavowed consideration of Lester’s statement in rendering a judgment, and that other evidence supported the conviction.

Justice French’s Separate Concurrence

Justice French agrees that Arnold’s conviction should be upheld, but disagrees with the lead opinion on two points.

First, French would find that Arnold does have standing to challenge the admission of Lester’s testimony on Fifth Amendment grounds. But she notes that Arnold did not try to assert a Fifth Amendment claim on his father’s behalf, but rather, argued that he himself was unfairly prejudiced by the improper admission of Lester’s written statement and testimony after Lester had invoked the privilege. Nevertheless, she concludes that the trial court did not abuse its discretion in admitting Lester’s testimony, because Lester never established any real danger of self-incrimination.

French also disagrees with the lead opinion’s Confrontation Clause analysis. She would find that Lester was an unavailable witness for purposes of the Confrontation Clause, because even though he was present and in court, his invoking of his Fifth Amendment privilege denied Arnold the ability to cross examine him meaningfully. She also chides the lead opinion for not determining whether Lester’s out-of-court statement was testimonial or nontestimonial, as required by Crawford to determine admissibility. Nevertheless, despite these disagreements, French ultimately agrees that even if the trial court erred in admitting Lester’s written statement, the error was harmless because other properly admitted evidence supported Arnold’s conviction beyond a reasonable doubt.

O’Donnell believes the record in this case shows the trial court made no inquiry whatsoever for the basis of Lester’s claim of privilege against self-incrimination, and could not have ascertained from what was said which party was the aggressor, or whether Lester was clearly mistaken about his right to assert the privilege.

O’Donnell also disagrees that any Confrontation Clause analysis is necessary in this case. Rather, he would find that Lester’s out-of-court statement was inadmissible hearsay, and that the remaining evidence was insufficient to support Arnold’s conviction.

Justice Lanzinger’s Dissent

Justice Lanzinger sees this as a case of nothing more than error correction, and would dismiss the case as improvidently accepted. “This is a fact-specific case that, despite the treatise of the lead opinion, articulates no new legal principle,” she wrote. Amen.

Justice O’Neill’s Dissent

Justice O’Neill pretty much agrees with the points made in Justice O’Donnell’s dissent.

O’Neill believes this case presents a good opportunity “to explain the duty of a trial court to take affirmative steps to determine the validity of the Fifth Amendment claim of any witness.” He thinks the trial judge in this case made Lester prove he was entitled to the privilege in a manner that actually made him lose the very protections he sought. Like Justice O’Donnell, O’Neill sees Lester’s statement to the police as hearsay, with no applicable exception, and would find that its improper admission unfairly prejudiced Arnold because it allowed the state to override Lester’s claim of privilege. “I know of no rule of evidence or procedure allowing a court to compel a witness to read an unsworn written statement into the record when the witness has professed a lack of personal knowledge regarding the content of that writing, “ O’Neill wrote. He would find the admission of the statement into evidence to be an abuse of discretion.

Finally, O’Neill disagrees with the lead opinion that this is a case where the presumption in a bench trial that a judge considers only proper evidence makes any error harmless. Error in the admission of testimony is harmless only if there is no reasonable possibility that that testimony contributed to the conviction. To O’Neill, the evidence of domestic violence without the statement was wholly insufficient to support a conviction. Thus, he does not agree that there is no reasonable possibility that the testimony contributed to Arnold’s conviction.

Case Syllabus

None

Concluding Observations

I called this one wrong, and my student contributor Michael Elliott called it right. I correctly predicted that Justices O’Neill, O’Donnell, and Lanzinger were going for the defense, but incorrectly thought Justice Pfeifer, who asked no questions at argument, would join them. And the case is really fractured—five separate opinions. There were not four votes on whether Jeffrey Arnold had standing to raise the issue of Lester Arnold’s self-incrimination privilege claim. Despite that, all the justices did agree on one point—the inquiry by the trial court into Lester’s assertion of the privilege against self-incrimination was “less than ideal.” In the end, I agree with Justice Lanzinger that the lead opinion wrote a treatise that is simply error correction, establishing no new legal principles. Used a lot of ink, though. And made a lot of excuses for several poor practices, by all concerned.